“The criterion for deciding what the meaning today ought to be is what was the understood meaning, as applied to criteria at the time,” is how Supreme Court Justice Antonin Scalia summed up his approach to judging the constitutionality of laws that come before the Court.
Scalia joined “Fox News Sunday” to promote his new book, "Reading the Law: The Interpretation of Legal Texts," which explains this approach, often referred to as textualism or originalism.
“Textualism means you're -- you're governed by the text. That's the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that, but the text of the statute. Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not -- not some later, modern meaning,” Scalia explained.
One of the 57 canons, or rules of thumb for judging, Scalia writes about in his book says, “A statute should be interpreted in a way that avoids placing its constitutionality in doubt.”
This seemed to be the reasoning Chief Justice John Roberts employed when he found the Affordable Health Care Act constitutional under the Congress’s power to tax.
Scalia, who wrote in dissent, said he does not think the chief justice got it right.
“If you read the rest of the section, you would say to find a way, to find a meaning that the language will bear, that will uphold the constitutionality. You -- you don't interpret a penalty to be a pig. It can't be a pig.”
And that was exactly the crux of Scalia’s disagreement with the majority. He argued that it is clear Congress did not intend the individual mandate to include a tax on those who refused to purchase health care, but a penalty and the court has no authority, in Scalia’s words, to “rewrite” the statute.
Another issue that has resurfaced with the mass shooting in Colorado is gun control.
In 2008, Scalia wrote the majority opinion in DC v. Heller that said the handgun ban in the nation’s capitol was unconstitutional.
However, as the majority said in Heller, Scalia believes the second amendment is not an unlimited right. Just what the court would find unconstitutional, as it pertains to types of weapons especially, Scalia issued a “we will have to wait and see” answer.
“For example, there was a tort called afrighting, which, if you carried around a really horrible weapon just to scare people, like a -- a head ax or something -that was, I believe, a misdemeanor. So, yes, there are some limitations that can be imposed. What they are will depend on what the -- what the society understood were reasonable limitations at the time,” the justice explained.
Roe v. Wade was decided in 1973, nearly a decade before Scalia joined the highest court, but he has had the opportunity to make his views known on the precedence established by the case.
“It is, in my mind, the clearest example of being a non-textualist and a non-originalist. Nobody ever thought that the American people ever voted to prohibit limitations on abortion. I mean there's nothing in ‘The Constitution’ that says that,” Scalia said.
Scalia added, “There's no right to privacy in ‘The Constitution,’ no generalized right to privacy….(the "Griswold" case) was wrong.”
Scalia, the longest-serving justice on the current court, said he hasn’t decided when to retire.
“I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years, 26 years. Sure. But I mean I shouldn't have to tell you that.”